A recent decision of the Massachusetts Appeals Court sets an important precedent in favor of solar development in the Commonwealth. In Sunpin Energy Services, LLC v. Zoning Board of Appeals of Petersham, the court unanimously vacated the decision of a municipal zoning board denying a special permit for a ground-mounted solar array (and accompanying energy storage system). The decision clarifies and confirms that, in light of the statutory protections for solar energy in the Commonwealth, the discretion of local boards to deny zoning approvals for solar projects is exceptionally limited. Future solar projects will benefit from this increased certainty.
Background and Decision
The developer in this case proposed a solar project that satisfied the applicable special permit requirements of the town’s solar zoning bylaw, including rules on land clearing. Two of three zoning board members voted to grant a special permit for the project, on the condition that certain vegetative screening be installed. However, the third member dissented, resulting in a denial of the special permit under state law (which requires unanimous votes from three-member boards to grant special permits). Despite acknowledging that the solar project met the special permit requirements, the dissenter believed the board nonetheless had discretion to deny the permit based on health, safety, and welfare concerns about deforestation, and climate protection goals cited in state-agency guidance. The developer challenged the denial in the Land Court, which ruled for the board on the basis that the denial relied on standards articulated in the zoning bylaw.
The Appeals Court disagreed, emphasizing that denial of the application ran counter to the legislative goal of promoting solar energy and was instead driven the board’s subjective views and preferences. Central to the court’s holding is G.L. c. 40A, § 3, ninth para., the solar clause of the so-called Dover Amendment. This clause expressly bars municipalities from prohibiting or unreasonably regulating solar energy systems (including both solar arrays and energy storage systems) unless the municipal bylaw establishes a valid public health, safety, or welfare basis for doing so. While a local board has the ability to impose reasonable conditions on solar special permits, the Dover Amendment significantly limits its discretion to do so. Here, the zoning board vetoed the project because the board preferred that the site remain in its current natural state, rather than be developed for solar. The Appeals Court ruled that in doing so, “the board exceeded its discretionary powers.”
The Appeals Court vacated the denial and remanded to the board. Importantly, the court expressly left no room for further denial: “On remand, the board will not have the power to deny the special permit; it may impose only reasonable conditions if warranted.”
Key Takeaways
Under Sunpin:
- Only bylaw-based criteria (and not ad hoc add-ons or subjective policy preferences) can be considered in reviewing a solar special permit application.
- Where a solar project otherwise complies with objective bylaw requirements, the project can be reasonably conditioned but not denied.
While numerous previous Land Court decisions have reached the same conclusions as the Appeals Court did here, Sunpin is the first precedential appellate decision to affirm the exceptionally limited scope of a local board’s discretion to do anything other than grant a special permit (with or without conditions) in light of the state statutory protections for solar under G.L. c. 40A, § 3, ninth para.
Accordingly, Sunpin provides greater clarity and protection for solar projects navigating local permitting processes moving forward.
